Statement of the ICRC before the Preparatory Committee for the Establishment of an International Criminal Court
International Committee of the Red Cross delegation to the United Nations, New York, 4-15 August 1997
We would like to thank you, Mr Chairman, for giving the International Committee of the Red Cross (ICRC) the opportunity to participate in the work of the Preparatory Committee and to speak before this assembly. We have thus far followed with great interest the discussions which took place before the Preparatory Committee, in particular those closely related to international humanitarian law, and welcome the continued efforts made by the delegations towards the establishment of an international criminal court.
Many of the issues under discussion at this August session are of fundamental importance for both the effectiveness of the court and the safeguarding of existing law. It is on issues of direct relevance to international humanitarian law that we would like to express our concerns today, namely on the questions of complementarity and of the trigger mechanism.
Regarding the first question, that of complementarity, the ICRC would like to recall that under the 1949 Geneva Conventions, 188 States have accepted to be bound by the duty to prosecute or to extradite persons alleged to have committed, or to have ordered the commission of, grave breaches. States have also accepted to undertake all necessary steps to enact any legislation necessary to provide effective penal sanctions for the perpetrators and to suppress all acts contrary to the Conventions. Hence, the duty to prosecute exists, regardless of the State on whose territory they are committed or of the nationality of the accused.
The obligation to prosec ute alleged perpetrators of grave breaches of humanitarian law is often either ignored or inadequately fulfilled in practice. However, it is not the role of the international criminal court to act as a substitute for national courts and thus detract from the existing obligation of States to repress such crimes at the national level. Rather, as provided by the complementarity principle, the international criminal court would leave the primary responsibility to States to act and would act only in such cases where national courts would not have. It is therefore necessary to provide the Court with the necessary powers to ensure its effectiveness and its ability to give adequate judicial response to crimes of international concern which have not been suppressed by States.
This question of effectiveness of the Court brings us to the second point of concern to the ICRC: the state consent regime which requires obtaining the consent of the custodial and territorial, or other States, before the Court can exercise its jurisdiction. Under the existing principle of universal jurisdiction, any State has the right to prosecute persons alleged to have committed war crimes and no consent is required from any other States. This principle simply reaffirms the fundamental notion that war criminals are not immune from prosecution; those responsible for the commission of war crimes are accountable for their acts and must be brought to justice. Hence, if the Court is to act only when States have not, and if yet another hurdle - that of consent - is imposed upon the Court before it may exercise its jurisdiction, we are simply paving the way to the frustration of our goal. If, by establishing an international criminal court, the goal is indeed to enhance the effective prosecution and suppression of crimes of international concern, the ICC must have inherent jurisdiction over the core crimes of genocide, crimes against humanity and war crimes.
The last point that the ICRC would like to make regards the trigger mechanism and, in particular, the assurance that the court offers all the necessary guarantees of independence and impartiality. The draft as it now stands provides that, when the Security Council is dealing with a situation covered by Chapter VII of the Charter, no prosecution arising from that situation may be commenced unless the Council otherwise decides. It seems difficult, however, to reconcile the principle of an independent and impartial court with the fact that, in certain cases, the court would be dependent on the Security Council or be subordinated to its action, and might thus be prevented from performing its duties freely.
The ICRC is also of the opinion that the Prosecutor must be empowered to initiate investigations and institute proceedings ex officio . Granting the Prosecutor such powers would give the Court greater impartiality and independence and would render it more effective.
On this note, Mr Chairman, we wish to thank you again for allowing the ICRC to contribute to this very important discussion.
Ref. LG 1997-098 ENG